Plaintiffs claim privileged documents (attorney client and work product) were inadvertently produced to Defendant by a non-party witness pursuant to a subpoena.

At the heart of plaintiffs' application was their contention that they "retained" the non-party to act as their "representative" in the litigation. In this role, plaintiffs disclosed to the non-party "numerous confidential communications" between plaintiffs and their counsel, which plaintiffs contend are protected by the attorney client privilege and the work-product doctrine. Plaintiffs maintain that the nonparty was included on these communications based on plaintiffs' "understanding and expectation" that he would keep the communications confidential.

The Court found that Plaintiffs failed to meet their burden of establishing that the privilege should apply to the documents at issue because, inter alia, Plaintiff did not demonstrate that the non-party was their representative or agent.